Karnataka High Court
Sri Basavaraj Bommai vs State Of Karnataka on 27 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 12164 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 12164 OF 2024 (482(Cr.PC) / 528(BNSS))
BETWEEN:
1. SRI BASAVARAJ BOMMAI
S/O LATE SOMAPPA BOMMAI
AGED ABOUT 64 YEARS,
MEMBER OF PARLIAMENT
HAVERI-GADAG CONSTITUENCY
FORMER CHIEF MINISTER
STATE OF KARNATAKA
R/AT 4883-1, SAVANUR ROAD
SHIGGAON TALUK-581 205
HAVERI DISTRICT.
...PETITIONER
Digitally
signed by (BY SRI. PRABHULING K. NAVADGI, SENIOR COUNSEL FOR
GEETHA P G
SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)
Location:
HIGH
COURT OF
KARNATAKA AND:
1. STATE OF KARNATAKA
BY SAVANUR POLICE STATION,
SAVANUR, HAVERI DISTRICT
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
PRINCIPAL BENCH
BENGALURU-560 001.
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2. SRI. MANJUNATH MANNIYAVAR
AGE 32 YEARS
POLICE OFFICER
SAVANUR POLICE STATION
SAVNOOR TALUK-581 118
DISTRICT HAVERI.
...RESPONDENTS
(BY SRI. B.N. JAGADEESH, ADDL. SPP FOR R.1
R.2 IS SERVED AND UNREPRESENTED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF
THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023, PRAYING
TO QUASH THE COMPLAINT DATED 04.11.2024 (ANNEXURE A),
FIRST INFORMATION REPORT BEARING CRIME NO.0208/2024
DATED 04.11.2024 (ANNEXURE B) REGISTERED AGAINST THE
PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION
196(1)(A) OF THE BHARATIYA NYAYA SANHITA, 2023 AND THE
NOTICE ISSUED UNDER SECTION 35 (3) OF BNSS IN CRIME
NO.0208/2024 DATED 07.11.2024 (ANNEXURE-C) AND ALL
FURTHER INVESTIGATION THERETO PENDING ON THE FILE OF
THE LEARNED CIVIL JUDGE & JMFC COURT, SAVANUR, HAVERI
DISTRICT, AS AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
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ORAL ORDER
1. In this petition, the petitioner has sought for the following
reliefs:
"I. Quash the Complaint dated 04.11.2024 (Annexure A),
First Information Report bearing Crime No.0208/2024
dated 04.11.2024 (Annexure B) registered against the
Petitioner for the offences punishable under Section
196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 and the
notice issued under Section 35 (3) of BNSS in Crime
No.0208/2024 dated 07.11.2024 (Annexure-C) and all
further investigation thereto pending on the file of the
Learned Civil Judge & JMFC Court, Savanur, Haveri
District, as against the Petitioner.
II, Further this Hon'ble Court may be pleased to grant such
other reliefs as deemed fit in the interest of justice and
equity."
2. Heard learned Senior Counsel for the petitioner and learned
Additional SPP for respondent No.1 and perused the material on
record. Respondent No.2 has been served and remained
unrepresented.
3. In addition to reiterating the various contentions urged in the
petition and referring to the material on record, the learned Senior
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Counsel for the petitioner invited my attention to the impugned
complaint and FIR in order to point out that necessary ingredients
for commission of the offences punishable under Section 196(1)(a)
of the Bharatiya Nyaya Sanhita, 2023 (old Section 153A of IPC)
were conspicuously absent and not forthcoming in the same and
the impugned complaint and FIR deserve to be quashed in the light
of the following judgments of the Apex Court and this Court:
1. Javed Ahmad Hajam v. State of Maharashtra [(2024) 4 SCC
156]
2. Shiv Prasad Semwal v. State of Uttarakhand [(2024) 7 SCC
555]
3. Bilal Ahmed Kaloo v. State of A.P., [(1997)7 SCC 431]
4. Suresha v. State of Karnataka [Crl.P.No.5694/2024 DD
20.09.2024]
4. Per contra, learned Additional SPP for respondent No.1
submits that the complaint makes out the allegations and the entire
speech clearly indicates commission of the offences punishable
under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023, and
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as such, question of interfering with the same at this stage would
not arise in the facts and circumstances of the instant case.
5. Before adverting to the rival submissions, it would be
necessary to extract the complaint which is as under:
" ಾನು ಮಂಜು ಾಥ ಮ ಯವರ ವಯಸು 32 ವಷ , ೕಸ
ಾನ ೇಬ ನಂಬರ 1202 ಸವಣೂರ ೕ ಾ ೆ .ನಂ.
9740951558 ೊಟ! ¦ügÁå¢, " ಾಂಕ-04-11-2024
*
ಾನು ಈಗ 4 ವಷ "ಂದ ಸವಣೂರ ೕ ಾ ೆಯ ' (.).(.
1202 ಅಂತ ಕತ ವ, -ವ .ಸು/01ೆ2ೕ ೆ. ಸದ, ಸವಣೂರ ೕ ಾ ೆಯ '
ಗುಪ0 4ಾ./ ಸಂಗ5.ಸುವ ಕತ ವ, -ವ .ಸು/01ೆ2ೕ ೆ. ಈ "ವಸ " ಾಂಕ-
04-11-2024 ರಂದು ಸವಣೂರ ೕ ಾ ಾ 6ಾ,)0ಯ ' 78ಾ9ಂವ-
ಸವಣೂರ :;ಾನಸ<ಾ ಉಪ ಚು ಾವ ೆಯ ಾಂ8ೆ5ೕಸ ಪ?ದ ಚು ಾವ ಾ
ಪ5@ಾರ ಸ<ೆಗಳ ' 4ಾನ, ಮುಖ,ಮಂ/5ಗಳC ಕ ಾ ಟಕ ಸ ಾ ರ ರವರು
<ಾಗವ.ಸುವ ಬಂ1ೋಬಸ0 ಕತ ವ,ದ ದ
' ು2 ಅಲ'1ೆ ಸವಣೂರ ನಗರದ '
E.Fೆ.). ಪ?ದ ವ/Gಂದ 1ೇವHಾIನ ಮತು0 Jೈತರ ಅ(0ಯನುL
ಕಬMಸು/0ರುವ ವN ಮಂಡM Pಾಗೂ ಾಂ8ೆ5ೕಸ ಪ?ದ -;ಾ ರವನುL ಖಂQ(
4ಾನ, 4ಾR ಮುಖ,ಮಂ/5ಗಳC 75ೕ.ಬಸವJಾಜ Sೊ4ಾTG ಇವರ
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"ವಸ " ಾಂಕ-04-11-2024 ರಂದು ಮ1ಾ,ಹL 3-30 ಗಂ ೆ ಸು4ಾZ8ೆ
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1) 4ಾನ, 4ಾR ಮುಖ,ಮಂ/5ಗಳC 75ೕಬಸವJಾಜ Sೊ4ಾTG 2)75ೕ (.\
ರ: 4ಾR ಮಂ/5ಗಳC 3)75ೕ.ಅರ:ಂದ Sೆಲ'ದ ]ಾಸಕರು 4)75ೕ ).JಾRೕವ
4ಾR ]ಾಸಕರು 5)75ೕ.ಅರುಣಕು4ಾರ ಪ^Fಾರ 4ಾR ]ಾಸಕರು
ಇವರುಗಳC ಒಂದು 6ಾಹನದ ' ಹ/0 ತಮT <ಾಷಣವನುL 4ಾQದು2 ಅದರ '
4ಾನ, 4ಾR ಮುಖ,ಮಂ/5ಗಳC 75ೕ ಬಸವJಾಜ Sೊ4ಾTG ಮತು0
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75ೕ.(.\. ರ: 4ಾR ಮಂ/5ಗಳC ಇವರು ತಮT <ಾಷಣದ ' ಒಂದು ಧಮ ದ
ಜನರ <ಾವ ೆ ೆರMಸುವ ಮತು0 ಉaೆ0ೕಜನ -ೕಡುವ Pಾ8ೆ <ಾಷಣ 4ಾQದು2
Sೊ4ಾTGರವರು 4ಾತ ಾಡು6ಾಗ ಸವಣೂರ ನಡುವ -ಂತ ಎ ' ಕಲ'
©ಲ'aೈ/ ಅದ ೆc ವPïá ಆ(0, ಅಂ8ಾತ ನಮT <ೋ: ಸ4ಾಜದ ಮ ೆಗಳ
-4ಾ ಣ 4ಾಡSೇಕು ಅಂaಾ ಹಣ ಮಂಜೂರು 4ಾQದು2 ಸು4ಾರು ಮೂರು
ವಷ ದ .ಂ1ೆ <ೋ: ಸ4ಾಜ ೆc ಮಂಜೂರು 4ಾQದ ಹಣ ಅದು ಕೂಡ ವPïá
ಆ(0 ಅಂತ PೇಳCaಾ0Jೆ ಅಂತ ಒಂದು Fಾ/ಯನುL ಉaೆ0ೕRಸುವ ಉ1ೆ2ೕಶ"ಂದ
ಮತು0 (.\. ರ: ರವರು ನಮ8ೆ ಸಂ:;ಾನ 1ೊಡg1ೋ ಅಥ6ಾ ಶZೕhಾ
ಾನೂನು 1ೊಡg1ೋ ಇ ' ವPïá PೆಸZನ ' Jೈತರ ಜiೕನುಗಳನುL,
1ೇವHಾIನಗಳನುL, ೆJೆಗಳನುL ವPïá kಾaೆ8ೆ ಹಚುl/01ಾ2Jೆ ಇ '
ಜiೕgïCºÀäzÀವರ ಶZೕhಾ ಾನೂನು ನmೆಯnಾ' ಅಂaಾ ಮತು0 ಸು4ಾರು
1600 ವಷ ಗಳ .ಂದ ಕ\!ದ HೋoೕಶWರ 1ೇವHಾIನ ನಮTದು ಅಂ/1ಾ2Jೆ
ಇವZ8ೆ hಾವpದರ ' PೊmೆಯSೇಕು ಅಂತ ಜನZ8ೆ ೇM1ಾಗ ಜನರು
ಚಪq Gಂದ PೊmೆಯSೇಕು ಅಂತ ಕೂrರುaಾ0Jೆ. ಅಲ'1ೆ ಈಗ ಏ ಾದರೂ
Sಾಲ EtlದJೆ ಚnೇFಾವ ಚಳCವM 1947 ರ ' ಎnಾ' ೊ\!1ೆ HಾಬZ8ೆ
uಾvHಾ0ನ .ಂದೂಗM8ೆ ಇಂQhಾ ೊಟು! nೆ ಾc ಚು ಾ0 4ಾQ ಆr1ೆ
ಆದರೂ ಸ.ತ ನಮT Jೈತರ ಜiೕನು, 1ೇವHಾIನ Sೇಕಂತ ಅಂತ ೈಯ '
oೖN .Qದು ೊಂಡು ಏರು ಧw-ಯ ' ಕೂQದ ಜನರ ಮುಂ1ೆ <ಾಷಣ
4ಾQದು2 ಇದZಂದ ೋಮುಗಳ, ಅಥ6ಾ Fಾ/ಗಳ ಮದ, ಅHೌPಾದ aೆ
ಅಥ6ಾ 6ೈರತW, 6ೈಮನಸು ಮೂಡುವಂತಹ, <ಾವ ೆಗಳC ೆರಳCವಂaೆ
ಒಂದು ೋ:8ೆ ಉaೆ0ೕಜನ -ೕಡುವಂತಹ <ಾಷಣ 4ಾQದು2 ಸದZ
<ಾಷಣವನುL ನನL Sೈ ಮೂಲಕ :ೕQyೕ t/5ೕಕರಣ 4ಾQರುaೆ0ೕ ೆ.
ಸವಣೂರ ನಗರದ ' ಉಪಚು ಾವ ೆಯ -ೕ/ ಸಂ.aೆ FಾZಯ 'ದು2 ಆದರೂ
ಸ.ತ oೕnಾc (ದ E.Fೆ.). ಪ?ದ ಮುಖಂಡರು ಒಂದು Fಾ/ ಅಥ6ಾ
ಒಂದೂ ೋಮನವರ <ಾವ ೆ8ೆ ಧ ೆc ತರುವಂaೆ ಮತು0 ಒಂದು
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Sೈ ದ ' :ೕQyೕ 4ಾQ ೊಂQರುaೆ0ೕ ೆ. ಒಂದೂ ೋiನವರ
<ಾವ ೆ8ೆ ಧ ೆc ತರುವಂaೆ ಮತು0 ಒಂದು ೋiನವರನುL ಉaೆ0ೕRಸುವ
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Zೕ/ಯ ' <ಾಷಣ 4ಾQದ 4ಾನ, 4ಾR ಮುಖಮಂ/5ಗಳC 75ೕ.ಬಸವJಾಜ
Sೊ4ಾTG ಮತು0 75ೕ.(.\.ರ: 4ಾR ಮಂ/5ಗಳC ಇವರ oೕnೆ ಾನೂನು
ಕ5ಮ ೈ8ೊಳzಲು ನನLದು {hಾ " ಇರುತ01ೆ."
6. A perusal of the complaint and FIR would clearly indicate that
the petitioner is alleged to have committed the offences punishable
under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 (old
Section 153A of IPC). Under identical circumstances, in relation to
the offences punishable under Section 153-A of IPC, the Apex
Court and this Court have held in the following judgments as under:
1. Paragraphs 7 to 10 and 12 of the judgment of the Apex Court
in Javed Ahmad Hajam v. State of Maharashtra [(2024)4 SCC
156] read as under:
"7. In Manzar Sayeed Khan, while interpreting Section
153-A, in para 16, this Court held thus: (SCC p. 9)
"16. Section 153-A IPC, as extracted
hereinabove, covers a case where a person by
words, either spoken or written, or by signs or
by visible representations or otherwise,
promotes or attempts to promote, disharmony
or feelings of enmity, hatred or ill will between
different religious, racial, language or regional
groups or castes or communities or acts
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prejudicial to the maintenance of harmony or is
likely to disturb the public tranquillity. The gist
of the offence is the intention to promote
feelings of enmity or hatred between
different classes of people. The intention to
cause disorder or incite the people to
violence is the sine qua non of the offence
under Section 153-A IPC and the
prosecution has to prove prima facie the
existence of mens rea on the part of the
accused. The intention has to be judged
primarily by the language of the book and
the circumstances in which the book was
written and published. The matter
complained of within the ambit of Section
153-A must be read as a whole. One cannot
rely on strongly worded and isolated
passages for proving the charge nor indeed
can one take a sentence here and a
sentence there and connect them by a
meticulous process of inferential
reasoning."
(emphasis supplied)
8. This Court in Manzar Sayeed Khan referred to the
view taken by Vivian Bose, J., as a Judge of the erstwhile
Nagpur High Court in Bhagwati Charan Shukla v. Provincial
Govt.3 A Division Bench of the High Court dealt with the
offence of sedition under Section 124-A IPC and Section 4(1)
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of the Press (Emergency Powers) Act, 1931. The issue was
whether a particular 9 article in the press tends, directly or
indirectly, to bring hatred or contempt to the Government
established in law. This Court has approved this view in its
decision in Ramesh v. Union of India. In the said case, this
Court dealt with the issue of applicability of Section 153-A
IPC. In para 13, it was held thus: (Ramesh case, SCC p.
676)
"13. ..... the effect of the words must be
judged from the standards of reasonable,
strong-minded, firm and courageous men,
and not those of weak and vacillating
minds, nor of those who scent danger in
every hostile point of view. ... It is the
standard of ordinary reasonable man or as they
say in English law 'the man on the top of a
Clapharm omnibus'. (Bhagwati Charan Shukla
case, SCC OnLine MP para 67)"
(emphasis supplied)
Therefore, the yardstick laid down by Vivian Bose, J., will
have to be applied while judging the effect of the words,
spoken or written, in the context of Section 153-A IPC.
9. We may also make a useful reference to a decision of
this Court in Patricia Mukhim v. State of Meghalaya. Paras 8
to 10 of the said decision read thus: (SCC pp. 41-43)
"8. 'It is of utmost importance to keep all
speech free in order for the truth to emerge
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and have a civil society.' - Thomas Jefferson.
Freedom of speech and expression guaranteed
by Article 19(1)(a) of the Constitution is a very
valuable fundamental right. However, the right
is not absolute. Reasonable restrictions can be
placed on the right of free speech and
expression in the interest of sovereignty and
integrity of India, security of the State, friendly
relations with foreign States, public order,
decency or morality or in relation to contempt of
Court, defamation or incitement to an offence.
Speech crime is punishable under Section 153-
A IPC. Promotion of enmity between different
groups on grounds of religion, race, place of
birth, residence, language, etc, and doing acts
prejudicial to maintenance of harmony is
punishable with imprisonment which may
extend to three years or with fine or with both
under Section 153-A. As we are called upon to
decide whether a prima facie case is made out
against the appellant for committing offences
under Sections 153-A and 505(1)(c), it is
relevant to reproduce the provisions which are
as follows:
* * *
9. Only where the written or spoken words
have the tendency of creating public disorder or
disturbance of law and order or affecting public
tranquillity, the law needs to step in to prevent
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such an activity. The intention to cause
disorder or incite people to violence is the
sine qua non of the offence under Section
153-A IPC and the prosecution has to prove
9 the existence of mens rea in order to
succeed.
10. The gist of the offence under Section
153-A IPC is the intention to promote
feelings of enmity or hatred between
different classes of people. The intention has
to be judged primarily by the language of the
piece of writing and the circumstances in which
it was written and published. The matter
complained of within the ambit of Section 153-A
must be read as a whole. One cannot rely on
strongly worded and isolated passages for
proving the charge nor indeed can one take a
sentence here and a sentence there and
connect them by a meticulous process of
inferential reasoning."
(emphasis in original and supplied)
10. Now, coming back to Section 153-A, clause (a) of
sub-section (1) of Section 153-A IPC is attracted when by
words, either spoken or written or by signs or by visible
representations or otherwise, an attempt is made to promote
disharmony or feelings of enmity, hatred or ill will between
different religious, racial, language or regional groups or
castes or communities. The promotion of disharmony,
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enmity, hatred or ill will must be on the grounds of religion,
race, place of birth, residence, language, caste, community
or any other analogous grounds. Clause (b) of sub-section
(1) of Section 153-A IPC will apply only when an act is
committed which is prejudicial to the maintenance of
harmony between different religious, racial, language or
regional groups or castes or communities and which disturbs
or is likely to disturb the public tranquillity.
12. In Manzar Sayeed Khan, this Court has read
"intention" as an essential ingredient of the said offence. The
alleged objectionable words or expressions used by the
appellant, on its plain reading, cannot promote disharmony
or feelings of enmity, hatred or ill will between different
religious, racial, language or regional groups or castes or
communities. The WhatsApp status of the appellant has a
photograph of two barbed wires, below which it is mentioned
that "AUGUST 5 -- BLACK DAY -- JAMMU & KASHMIR".
This is an expression of his individual view and his reaction
to the abrogation of Article 370 of the Constitution of India. It
does not reflect any intention to do something which is
prohibited under Section 153-A. At best, it is a protest, which
is a part of his freedom of speech and expression
guaranteed by Article 19(1)(a)."
2. Paragraphs 21 to 32 of the judgment of the Apex Court in Shiv
Prasad Semwal v. State of Uttarakhand [(2024) 7 SCC 555] read
as under:
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"21. It may be noted that the entire case as set out in the
impugned FIR is based on the allegation that the Facebook
news post uploaded by one journalist Mr Gunanand
Jakhmola was caused to be published on Parvatjan news
portal being operated by the appellant.
22. Thus, essentially, we are required to examine
whether the contents of the news report constitute any
cognizable offence so as to justify the investigation into the
allegations made in the FIR against the appellant.
23. For the sake of ready reference, the contents of the
disputed news article are reproduced hereinbelow:
"Gunanand Jakhmola
17-3-2020 at 30.05
Trivender Uncle what amazing things you are
doing?
Uncle you are laying foundation stone of Art
Gallery which is going to construct by acquiring
government land.
Uncle you are associating the mafias who are
violating the decisions of Modi Government.
Don't trap yourself with mafias, have you forgot
the problems arisen out of marriage of Gupta
brother's.
Uncle you were not like this, what happened to
you? Was the troubles arisen out of marriage of
Gupta Brothers was not enough that you are
now going to laying foundation stone of the Art
Gallery which is going to construct by acquiring
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government land. Just think over it, or take
report from LIU and other agencies about this
Art Gallery which is going to construct on the
acquired government land. This is a
government land which is dismantled by mafias
and your officers. Uncle you are innocent,
anybody can use you. Advisers and officers
surrounding you they are cunning.
This cunning persons have brought you forward
against the decisions of Modi Government.
Uncle let I inform you for your knowledge that
Modi Government means your honour has
given sanction to planning for Singtali Project
near Rishikesh. This project will reduce the
distance between Kumau and Garhwal and also
it will arrange sources of employment in
mountains.World Bank is also giving money,
but the program of Mafias in which you are
going to participate on 20 March, that is an
enemy of mountains. It has no concern with the
well being of mountains. It is against the
proposed project of Modi Government and your
officers and advisers are in collusion with that.
Please inquire it and then only you go.
Note: Kindly see the invitation card given by
mafias."
24. As per the counter-affidavit filed on behalf of the
State, after investigation, two substantive offences were
retained by the investigating officer against the appellant,
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which are Sections 153-A and 504 read with Sections 34 and
120-B IPC.
25. From a bare reading of the language of Section 153-
A IPC, it is clear that in order to constitute such offence, the
prosecution must come out with a case that the words
"spoken" or "written" attributed to the accused, created
enmity or bad blood between different groups on the ground
of religion, race, place of birth, residence, language, etc. or
that the acts so alleged were prejudicial to the maintenance
of harmony.
26. Upon careful perusal of the offending news article,
reproduced (supra), it is crystal clear that there is no
reference to any group or groups of people in
the said article. The publication focuses totally on the
complainant imputing that he had encroached upon public
land where the foundation stone laying ceremony was
proposed at the hands of Hon'ble Chief Minister of
Uttarakhand.
27. Apparently, the post was aimed at frustrating the
proposed foundation stone laying ceremony on the land, of
which the complainant claims to be the true owner. The post
also imputes that the person who was planning the
foundation stone ceremony was an enemy of mountains and
had no concern with the well-being of the mountains.
28. The learned Standing Counsel for the State tried to
draw much water from these lines alleging that this portion of
the post tends to create a sense of enmity and disharmony
amongst people of hill community and the people
of plains. However, the interpretation sought to be given to
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these words is far-fetched and unconvincing. The lines
referred to supra only refer to the complainant, imputing that
his activities are prejudicial to the hills. These
words have no connection whatsoever with a group or
groups of people or communities. Hence, the foundational
facts essential to constitute the offence under Section 153-A
IPC are totally lacking from the allegations as set out in e
the FIR.
29. In Manzar Sayeed Khan v. State of Maharashtra, this
Court held that for applying Section 153-A IPC, the presence
of two or more groups or communities is essential, whereas
in the present case, no such groups or communities were
referred to in the news article.
30. The other substantive offence which has been applied
by the investigating agency is Section 504 IPC. The said
offence can be invoked when the insult of a person provokes
him to break public peace or to commit any other offence.
There is no such allegation in the FIR that owing to the
alleged offensive post attributable to the appellant, the
complainant was provoked to such an extent that he could
indulge in disturbing the public peace or commit any other
offence. Hence, the FIR lacks the necessary ingredients of
the said offence as well.
31. Since we have found that the foundational facts
essential for constituting the substantive offences under
Sections 153-A and 504 IPC are not available from the
admitted allegations of prosecution, the allegations qua the
subsidiary offences under Sections 34 and 120-B IPC would
also be non est.
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32. The complainant has also alleged in the FIR that the
accused intended to blackmail him by publishing the news
article in question. However, there is no allegation in the FIR
that the accused tried to extract any wrongful gain or
valuable security from the complainant on the basis of the
mischievous/ malicious post."
3. Paragraphs 10 and 12 of the judgment of the Apex Court in
Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431] read as
under:
"10. Section 153-A was amended by the Criminal and
Election Laws (Amendment) Act, 1969 (Act No. 35 of 1969).
It consists of three clauses of which clauses (a) and (b)
alone are material now. By the same Amending Act sub-
section (2) was added to Section 505 of the Indian Penal
Code. Clauses (a) and (b) of Section 153-A and Section
505(2) are extracted below:
"153-A. Promoting enmity between different
groups on grounds of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial
to maintenance of harmony.-- (1)Whoever--
(a) by words, either spoken or written, or by
signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of
religion, race, place of birth, residence,
language, caste or community or any other
ground whatsoever, disharmony or feelings of
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enmity, hatred or ill will between different
religious, racial, language or regional groups or
castes or communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquillity, or
(c) * * *
shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
* * *
505. (2) Statements creating or promoting
enmity, hatred or ill will between classes.--
Whoever makes, publishes or circulates any
statement or report containing rumour or
alarming news with intent to create or promote,
or which is likely to create or promote, on
grounds of religion, race, place of birth,
residence, language, caste or community or
any other ground whatsoever, feelings of
enmity, hatred or ill will between different
religious, racial, language or regional groups or
castes or communities, shall be punished with
imprisonment which may extend to three years,
or with fine, or with both."
The common ingredient in both the offences is promoting
feeling of enmity, hatred or ill will between different religious
or racial or linguistic or regional groups or castes or
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communities. Section 153-A covers a case where a person
by "words, either spoken or written, or by signs or by visible
representations" promotes or attempts to promote such
feeling. Under Section 505(2), promotion of such feelings
should have been done by making and publishing or
circulating any statement or report containing rumour or
alarming news.
12. The main distinction between the two offences is that
while publication of the words or representation is not
necessary under the former, such publication is sine qua non
under Section 505. The words "whoever makes, publishes or
circulates" used in the setting of Section 505(2) cannot be
interpreted disjunctively but only as supplementary to each
other. If it is construed disjunctively, anyone who makes a
statement falling within the meaning of Section 505 would,
without publication or circulation, be liable to conviction. But
the same is the effect with Section 153-A also and then that
section would have been bad for redundancy. The intention
of the legislature in providing two different sections on the
same subject would have been to cover two different fields of
similar colour. The fact that both sections were included as a
package in the same amending enactment lends further
support to the said construction."
4. Paragraphs 8 to 10 of the judgment of this Court in Suresha v.
State of Karnataka [Crl.P.No.5694/2024 DD 20.09.2024] read as
under:
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"8. The offences alleged are the ones punishable under
Sections 153A, 504, 506 and others relating to unlawful
assembly. Whether this would become the ingredients of
Section 153A of the IPC is to be noticed. Section 153A of
the IPC reads as follows:
"153-A. Promoting enmity between different
groups on grounds of religion, race, place of
birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.--(1)
Whoever--
(a) by words, either spoken or written, or by
signs or by visible representations or otherwise,
promotes or attempts to promote, on grounds of
religion, race, place of birth, residence, language,
caste or community or any other ground
whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious, racial,
language or regional groups or castes or
communities, or
(b) commits any act which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquillity, or
(c) organises any exercise, movement, drill or
other similar activity intending that the participants
in such activity shall use or be trained to use
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criminal force or violence or knowing it to be likely
that the participants in such activity will use or be
trained to use criminal force or violence, or
participates in such activity intending to use or be
trained to use criminal force or violence or knowing
it to be likely that the participants in such activity
will use or be trained to use criminal force or
violence, against any religious, racial, language or
regional group or caste or community and such
activity, for any reason whatsoever causes or is
likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious,
racial, language or regional group or caste or
community,
shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
Offence committed in place of worship,
etc.--(2) Whoever commits an offence specified in
sub-section (1) in any place of worship or in any
assembly engaged in the performance of religious
worship or religious ceremonies, shall be punished
with imprisonment which may extend to five years
and shall also be liable to fine."
Section 153A makes it an offence if enmity is promoted
between different groups of religion. The present case is a
classic illustration of misuse of Section 153A of the IPC. It is
a case of counterblast to a complaint registered by these
petitioners. The defence is that the petitioners were shouting
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Bharath Matha Ki Jai and praising the Prime Minister of the
nation. The allegation by the complainant does not even
refer to any of those things. To protect the skin of the
complainant and others, the skin of the petitioners is sought
to be ripped off. It does not meet even a single ingredient of
Section 153A of the IPC. A pure case of counterblast is
sought to be projected as a crime under Section 153A of the
IPC. The ingredients that are necessary to bring home the
complaint under Section 153A need not detain this Court for
long or delve deep into the matter.
9. The Apex Court in the case of JAVED AHMAD
HAJAM v. STATE OF MAHARASHTRA [(2024) 4 SCC
156], has held as follows:
".... .... ....
10. Now, coming back to Section 153-A,
clause (a) of sub-section (1) of Section 153-
AIPC is attracted when by words, either
spoken or written or by signs or by visible
representations or otherwise, an attempt is
made to promote disharmony or feelings of
enmity, hatred or ill will between different
religious, racial, language or regional
groups or castes or communities. The
promotion of disharmony, enmity, hatred or
ill will must be on the grounds of religion,
race, place of birth, residence, language,
caste, community or any other analogous
grounds. Clause (b) of sub-section (1) of
Section 153-AIPC will apply only when an
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act is committed which is prejudicial to the
maintenance of harmony between different
religious, racial, language or regional
groups or castes or communities and which
disturbs or is likely to disturb the public
tranquillity.
11. Now, coming to the words used by the
appellant on his WhatsApp status, we may note
here that the first statement is that August 5 is a
Black Day for Jammu and Kashmir. 5-8-2019 is
the day on which Article 370 of the Constitution
of India was abrogated, and two separate Union
Territories of Jammu and Kashmir were formed.
Further, the appellant has posted that "Article
370 was abrogated, we are not happy". On a
plain reading, the appellant intended to criticise
the action of the abrogation of Article 370 of the
Constitution of India. He has expressed
unhappiness over the said act of abrogation.
The aforesaid words do not refer to any religion,
race, place of birth, residence, language, caste
or community. It is a simple protest by the
appellant against the decision to abrogate
Article 370 of the Constitution of India and the
further steps taken based on that decision. The
Constitution of India, under Article 19(1)(a),
guarantees freedom of speech and expression.
Under the said guarantee, every citizen has the
right to offer criticism of the action of abrogation
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of Article 370 or, for that matter, every decision
of the State. He has the right to say he is
unhappy with any decision of the State.
12. In Manzar Sayeed Khan [Manzar Sayeed
Khan v. State of Maharashtra, (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] , this Court has read
"intention" as an essential ingredient of the said
offence. The alleged objectionable words or
expressions used by the appellant, on its plain
reading, cannot promote disharmony or feelings
of enmity, hatred or ill will between different
religious, racial, language or regional groups or
castes or communities. The WhatsApp status of
the appellant has a photograph of two barbed
wires, below which it is mentioned that "AUGUST
5 -- BLACK DAY -- JAMMU & KASHMIR". This is an
expression of his individual view and his
reaction to the abrogation of Article 370 of the
Constitution of India. It does not reflect any
intention to do something which is prohibited
under Section 153-A. At best, it is a protest,
which is a part of his freedom of speech and
expression guaranteed by Article 19(1)(a).
13. Every citizen of India has a right to be
critical of the action of abrogation of Article
370 and the change of status of Jammu and
Kashmir. Describing the day the abrogation
happened as a "Black Day" is an expression
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of protest and anguish. If every criticism or
protest of the actions of the State is to be
held as an offence under Section 153-A,
democracy, which is an essential feature of
the Constitution of India, will not survive.
14. The right to dissent in a legitimate and
lawful manner is an integral part of the
rights guaranteed under Article 19(1)(a).
Every individual must respect the right of
others to dissent. An opportunity to
peacefully protest against the decisions of
the Government is an essential part of
democracy. The right to dissent in a lawful
manner must be treated as a part of the right
to lead a dignified and meaningful life
guaranteed by Article 21. But the protest or
dissent must be within four corners of the
modes permissible in a democratic set up. It
is subject to reasonable restrictions
imposed in accordance with clause (2) of
Article 19. In the present case, the appellant
has not at all crossed the line.
15. The High Court has held [Javed Ahmed
Hajam v. State of Maharashtra, 2023 SCC
OnLine Bom 819] that the possibility of stirring
up the emotions of a group of people cannot be
ruled out. The appellant's college teachers,
students, and parents were allegedly members
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of the WhatsApp group. As held by Vivian
Bose, J., the effect of the words used by the
appellant on his WhatsApp status will have to
be judged from the standards of reasonable
women and men. We cannot apply the
standards of people with weak and vacillating
minds. Our country has been a democratic
republic for more than 75 years. The people of
our country know the importance of democratic
values. Therefore, it is not possible to conclude
that the words will promote disharmony or
feelings of enmity, hatred or ill will between
different religious groups. The test to be applied
is not the effect of the words on some
individuals with weak minds or who see a
danger in every hostile point of view. The test is
of the general impact of the utterances on
reasonable people who are significant in
numbers. Merely because a few individuals
may develop hatred or ill will, it will not be
sufficient to attract clause (a) of sub-section (1)
of Section 153-AIPC.
16. As regards the picture containing "Chand"
and below that the words "14th August-Happy
Independence Day Pakistan", we are of the
view that it will not attract clause (a) of sub-
section (1) of Section 153-AIPC. Every citizen
has the right to extend good wishes to the
citizens of the other countries on their
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respective Independence Days. If a citizen of
India extends good wishes to the citizens of
Pakistan on 14th August, which is their
Independence Day, there is nothing wrong with
it. It is a gesture of goodwill. In such a case, it
cannot be said that such acts will tend to create
disharmony or feelings of enmity, hatred or ill
will between different religious groups. Motives
cannot be attributed to the appellant only
because he belongs to a particular religion.
17. Now, the time has come to enlighten and
educate our police machinery on the concept of
freedom of speech and expression guaranteed
by Article 19(1)(a) of the Constitution and the
extent of reasonable restraint on their free
speech and expression. They must be
sensitised about the democratic values
enshrined in our Constitution.
18. For the same reasons, clause (b) of sub-
section (1) of Section 153-AIPC will not be
attracted as what is depicted on the WhatsApp
status of the appellant cannot be said to be
prejudicial to the maintenance of harmony
among various groups as stated therein. Thus,
continuation of the prosecution of the appellant
for the offence punishable under Section 153-
AIPC will be a gross abuse of the process of
law."
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(Emphasis supplied)
The Apex Court, in a subsequent judgment, in the case of
SHIV PRASAD SEMWAL v. STATE OF UTTARAKHAND
[2024 SCC OnLine SC 322], has held as follows:
".... .... ....
22. It may be noted that the entire case as set out in
the impugned FIR is based on the allegation that the
Facebook news post uploaded by one journalist Mr.
Gunanand Jakhmola was caused to be published on
Parvatjan news portal being operated by the appellant.
23. Thus, essentially, we are required to examine
whether the contents of the news report constitute any
cognizable offence so as to justify the investigation into the
allegations made in the FIR against the appellant.
24. For the sake of ready reference, the contents of
the disputed news article are reproduced hereinbelow:--
"Gunanand Jakhmola
17th March 2020 at 30.05
Trivender Uncle what amazing things you are doing?
Uncle you are laying foundation stone of Art Gallery
which is going to construct by acquiring government
land.
Uncle you are associating the mafias who are
violating the decisions of Modi Government.
Don't trap yourself with mafias, have you forgot the
problems arisen out of marriage of Gupta brother's.
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Uncle you were not like this, what happened to you?
Was the troubles arisen out of marriage of Gupta
Brothers was not enough that you are now going to
laying foundation stone of the Art Gallery which is
going to construct by acquiring government land.
Just think over it, or take report from LIU and other
agencies about this Art Gallery which is going to
construct on the acquired government land. This is a
government land which is dismantled by mafias and
your officers. Uncle you are innocent, anybody can
use you. Advisers and officers surrounding you they
are cunning.
This cunning persons have brought you forward
against the decisions of Modi Government.
Uncle let I inform you for your knowledge that Modi
Government means your honour has given sanction
to planning for Singtali Project near Rishikesh. This
project will reduce the distance between Kumau and
Garhwal and also it will arrange sources of
employment in mountains. World bank is also giving
money, but the program of Mafias in which you are
going to participate on 20 March, that is an enemy of
mountains. It has no concern with the well being of
mountains. It is against the proposed project of Modi
Government and your officers and advisers are in
collusion with that. Please inquire it and then only
you go.
Note: Kindly see the invitation card given by mafias."
25. As per the counter affidavit filed on behalf of the
State, after investigation, two substantive offences were
retained by the Investigating Officer against the appellant,
which are Sections 153A and 504 read with Sections 34
and 120B IPC.
26. From a bare reading of the language of
Section 153A IPC, it is clear that in order to constitute
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such offence, the prosecution must come out with a
case that the words 'spoken' or 'written' attributed to the
accused, created enmity or bad blood between different
groups on the ground of religion, race, place of birth,
residence, language, etc., or that the acts so alleged
were prejudicial to the maintenance of harmony.
27. Upon careful perusal of the offending news article,
reproduced (supra), it is crystal clear that there is no
reference to any group or groups of people in the said
article. The publication focuses totally on the complainant
imputing that he had encroached upon public land where the
foundation stone laying ceremony was proposed at the
hands of Hon'ble Chief Minister of Uttarakhand. Apparently,
the post was aimed at frustrating the proposed foundation
stone laying ceremony on the land, of which the complainant
claims to be the true owner. The post also imputes that the
person who was planning the foundation stone ceremony
was an enemy of mountains and had no concern with the
well-being of the mountains.
28. Learned standing counsel for the State tried to
draw much water from these lines alleging that this
portion of the post tends to create a sense of enmity and
disharmony amongst people of hill community and the
people of plains. However, the interpretation sought to
be given to these words is far-fetched and
unconvincing. The lines referred to supra only refer to
the complainant, imputing that his activities are
prejudicial to the hills. These words have no connection
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whatsoever with a group or groups of people or
communities. Hence, the foundational facts essential to
constitute the offence under Section 153A IPC are totally
lacking from the allegations as set out in the FIR."
29. In the case of Manzar Sayeed Khan v. State of
Maharashtra, this Court held that for applying
Section 153A IPC, the presence of two or more groups or
communities is essential, whereas in the present case, no
such groups or communities were referred to in the news
article.
30. The other substantive offence which has been
applied by the investigating agency is Section 504 IPC.
The said offence can be invoked when the insult of a
person provokes him to break public peace or to commit
any other offence. There is no such allegation in the FIR
that owing to the alleged offensive post attributable to
the appellant, the complainant was provoked to such an
extent that he could indulge in disturbing the public
peace or commit any other offence. Hence, the FIR lacks
the necessary ingredients of the said offence as well.
Since we have found that the foundational facts
essential for constituting the substantive offences under
Sections 153A and 504 IPC are not available from the
admitted allegations of prosecution, the allegations qua
the subsidiary offences under Sections 34 and
120B IPC would also be non est.
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31. The complainant has also alleged in the FIR that
the accused intended to blackmail him by publishing the
news article in question. However, there is no allegation in
the FIR that the accused tried to extract any wrongful gain or
valuable security from the complainant on the basis of the
mischievous/malicious post.
32. In the case of State of Haryana v. Bhajan Lal2, this
Court examined the principles governing the scope of
exercise of powers by the High Court in a petition under
Article 226 of the Constitution of India and under
Section 482 CrPC seeking quashing of criminal proceedings
and held as follows:--
"102. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the
Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
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(1) Where the allegations made in the first information
report or the complaint, even if they are taken at
their face value and accepted in their entirety do
not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an
investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
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reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused
and with a view to spite him due to private and
personal grudge."
33. Tested on the touchstone of the above principles,
we are of the firm view that allowing continuance of the
proceedings pursuant to the impugned FIR bearing No. 31 of
2020 registered at P.S. Muni Ki Reti, District Tehri Garhwal
against the appellant is nothing but gross abuse of process
of law because the allegations as set out in the FIR do not
disclose necessary ingredients of any cognizable offence.
Hence, the impugned FIR and all proceedings sought to be
taken against the appellant are hereby quashed and set
aside."
(Emphasis supplied)
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The Apex Court did not permit further investigation even in a
crime before it. The FIR itself was quashed, as the High
Court of Uttarakhand had rejected the petition which
challenged the FIR.
10. In the light of the judgments of the Apex Court and
unequivocal facts narrated hereinabove, what would
unmistakably emerge is high improbability of the happening
of the incident even, against the 2nd respondent/complainant.
The complaint cannot but be held to be a counter-blast to
what the petitioners have registered, not against the
complainant but against several accused named therein. It
would be apposite to refer to a judgment of the High Court of
Andhra Pradesh, which lays down certain necessary
ingredients to drive home an offence under Section 153A of
the IPC even prima facie. The High Court of Andhra Pradesh
in KOLLU ANKABABU v. TIRUPATHI RAMESH [2022
SCC OnLine AP 2812], has held as follows:
".... .... ....
17. The ingredients necessary for making out an
offence under Section 153-A(a) is that the accused
person by words either spoken or written etc.,
promotes or attempts to promote, disharmony or
feelings of enmity, hatred or ill-will between different
religious, racial, language or regional groups or castes
or communities on grounds of religion, race, place of
birth, residence, language, caste or community or any
other ground whatsoever.
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18. The ingredients necessary for making out
an offence under Section 153-A(b) is the
commission of any act which is prejudicial to the
maintenance of harmony between different
religious racial, language or regional groups or
castes or communities, and which disturbs or is
likely to disturb the public tranquillity.
19. The ingredients necessary for an offence
under Section 153-A(c) is to organise any
exercise, movement, drill etc., so that participates
in such activities can be trained to use violence or
criminal force against any religious, racial,
language or regional group or caste or community
and such activity for any reason whatsoever
causes or is likely to cause fear or alarm or a
feeling of insecurity amongst members of such
religious, racial, language or regional group or
caste or communities.
20. The language in all the three sub-clauses
of Section 153-A require the following conditions
to be met before any offence can be said to have
been committed within this provision:--
a) The actions should cause enmity between
groups; Ill will against one group would
not attract the above provisions.
b) These actions should be committed with
the intention of causing such enmity.
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c) This provision would be applicable only
where enmity is caused on grounds of
religion, race, place of birth, residence,
language, caste or community or any other
ground whatsoever.
d) The term "or any other ground
whatsoever" would have to be read in
tandem with the preceding words and as
such the scope of this term would be that
the grounds would only have to be
grounds akin to the preceding grounds set
out in the provision.
e) The groups between whom such enmity or
disharmony or hatred or ill-will is caused
would be groups defined on the basis of
their religion, race, language, place of
birth, caste or community.
f) Differences or ill-will caused between two
groups which are not defined on the basis
of the above requirements would not
attract the provisions of Section 153-
A IPC."
(Emphasis supplied)
In the light of the afore-narrated facts and the judgments
extracted supra, permitting even investigation into the case
at hand would be prima facie permitting investigation into the
sloganeering of Bharath Matha Ki Jai inter alia, which can by
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no stretch of imagination be promoting disharmony or enmity
amongst religions. Sloganeering Bharath Matha Ki Jai
would only lead to harmony and never a discord. "
6. If the impugned complaint and FIR are examined bearing in
mind the principles enunciated in the aforesaid judgments, it is
clear that except stating that the properties are Wakf properties and
that the petitioner is alleged to have stated that wherever a stone is
thrown, a Wakf property is found, there are no other allegations in
the impugned complaint so as to attract the offences punishable
under Section 196(1)(a) of the Bharatiya Nyaya Sanhita, 2023 by
the petitioner. Under these circumstances, in the light of vague,
bald, omnibus, cryptic and laconic allegations made in the
impugned complaint which does not disclose commission of the
offences punishable under Section 196(1)(a) of the Bharatiya
Nyaya Sanhita, 2023 coupled with the principles enunciated by the
Apex Court and this Court in the aforementioned judgments, I am
of the opinion that continuation of the proceedings insofar as it
relates to the petitioner would amount to abuse of the process of
law warranting interference in the present petition.
7. In the result, I pass the following:
- 39 -
NC: 2025:KHC:22648
HC-KAR
ORDER
(i) The petition is hereby allowed;
(ii) The impugned FIR dated 04.11.2024 in Crime
No.208/2024 pending on the file of the Civil Judge and
JMFC, Savanur, Haveri District, insofar as the petitioner
is concerned, is hereby quashed; .
(iii) It is needless to state that this order is restricted to
the impugned complaint and will apply to the
petitioner/accused No.1 only and shall not apply to the
remaining accused.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
hkh.
